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Consumers' Checkbook v. United States Dep't of Health and Human Services

August 22, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff, Consumer's Checkbook/Center for the Study of Services ("CSS") brings this case to require the federal government defendants to disclose documents responsive to plaintiff's Freedom of Information Act ("FOIA") request and to prevent defendants from assessing fees for fulfilling this request. Pending before the Court are the parties' cross-motions for summary judgment. Upon consideration of the motions and supporting memoranda, the responses and replies thereto, the applicable law, and the entire record, the Court determines that plaintiff is entitled to production of the requested documents in full as well as a fee waiver. Therefore, for the reasons stated herein, plaintiff's motion for summary judgment is GRANTED, and defendants' motion for summary judgment is DENIED.


On March 27, 2006, plaintiff sent to defendant Centers for Medicare and Medicaid Services ("CMS"), which is part of the Department of Health and Human Services ("HHS"), a request for information under FOIA. Plaintiff sought disclosure of a specified subset of records for Medicare claims from a database maintained by CMS for each of the five following localities: Washington, D.C., Illinois, Maryland, Washington, and Virginia. The records pertained to all Medicare claims submitted by physicians during 2004. Plaintiff's request for information did not seek any identifying information of Medicare patients.

Also in their March 2006 request, plaintiff sought a fee waiver for the costs associated with fulfilling this request under 5 U.S.C. § 552(a)(4)(A)(iii) and 45 C.F.R. § 5.45. In support of this claim, plaintiff argued that a fee waiver was appropriate because the requested information would contribute to the public's understanding of the operations of CMS and the Medicare program. Plaintiff also argued that its commercial interests were not the primary purpose for the request.

On June 26, 2006, CMS denied plaintiff's FOIA request on the grounds that it could not satisfy the request utilizing a reasonable effort. See 5 U.S.C. § 552(a)(3)(B). Because the FOIA request was denied, CMS did not address plaintiff's fee waiver. On July 25, 2006, plaintiff appealed CMS's denial of the FOIA request.

On December 26, 2006, plaintiff filed its complaint with this Court, which asked the Court to direct the disclosure of the requested documents under FOIA. Subsequently, on January 29, 2007, CMS revised its ruling on plaintiff's original FOIA request and determined that defendants would be able to produce the responsive documents. Also in the January 29 letter, CMS denied plaintiff's request for a fee waiver and provided an estimate of the cost of producing the requested documents: $3,944.70 per locality. CMS recommended that plaintiff narrow the scope of the request and plaintiff complied by temporarily narrowing the scope of the request to relevant data from Washington, D.C. only. On February 28, 2007, plaintiff appealed the denial of its request for a fee waiver.

Based on their actions in January 2007, defendants filed a motion for summary judgment on March 1, which argued that plaintiff had failed to administratively exhaust its FOIA claim because it had not completed its appeal of the fee waiver determination. On March 16, 2007, CMS upheld the denial of plaintiff's fee waiver request on appeal for multiple reasons, including that plaintiff had not sufficiently established that its primary interest in the request was not a commercial one. Fee Waiver Appeal Decision, Pl.'s Ex. 1. In its decision though, CMS stated that it would release in full and without redaction the requested information for Washington, D.C.

On April 4, 2007, plaintiff filed an amended complaint, which asked the Court to direct the disclosure of all the requested documents, reverse the fee waiver determination, and award attorney fees and costs. Subsequently, defendants filed a supplement to their motion for summary judgment in which they changed course again and indicated that they would invoke FOIA Exemption 6 to withhold the physician-identifying information in the records requested by plaintiff. Plaintiff then filed its cross-motion for summary judgment, arguing that FOIA Exemption 6 is not applicable and that it is entitled to a fee waiver.


Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party opposing the motion has a duty to submit affidavits or other forms of information to the court to "set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Celotex Corp., 477 U.S. at 322 (citing Fed. R. Civ. P. 56(e)). "Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

ANALYSIS The parties' cross-motions present the Court three issues to resolve: (1) whether plaintiff has exhausted its administrative remedies; (2)the applicability of FOIA Exemption 6 to plaintiff's request; and (3) whether plaintiff's fee waiver request should be granted. The first issue is easily disposed of now. Defendants' exhaustion argument was based on the fact that plaintiff had not completed the fee waiver appeal process when defendants filed their motion for summary judgment. Since then, the appeals process has been completed and CMS issued a final decision on the fee waiver on March 16, 2007. Therefore, plaintiff has exhausted its administrative remedies. See Oblesby v. Dep't of Army, 920 F.2d 57, 66 (D.C. Cir. 1990).

I. FOIA Exemption 6

Under FOIA, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b); Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989). Consistent with the Act's "goal of broad disclosure, these exemptions have been consistently given a narrow compass," Tax Analysts, 492 U.S. at 151, and there is a "strong presumption in favor of disclosure." Dep't of State v. Ray, 502 U.S. 164, 173 (1991). The agency bears the burden of justifying any withholding, and the Court reviews the agency claims of exemption de novo. See 5 U.S.C. § 552(a)(4)(B); see also Ray, 502 U.S. at 173-74; Summers v. Dep't of Justice, 140 F.3d 1077, 1079-80 (D.C. Cir. 1998). To enable the Court to determine whether documents properly were withheld, the agency must provide a detailed description of the information withheld through the submission ...

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